¶ 1. Petitioner appeals from the superior court’s order granting summary judgment
¶ 2. In June 2009 petitioner pled guilty to the following charges pursuant to a plea agreement: operation without consent of owner; driving under the influence, second offense; possession of marijuana; and domestic assault. In July 2011, petitioner filed a pro se PCR petition. Counsel was appointed and petitioner moved for summary judgment. Petitioner argued that the undisputed facts showed that the plea colloquy failed to comply with Rule 11(f) because the court did not sufficiently establish a factual basis for the pleas. Petitioner also asserted that the colloquy failed to comply with Rule 11(c)(1) because the court did not adequately explain the elements of the charge of operating without the cоnsent of owner. The PCR court rejected petitioner’s arguments and concluded that the State was entitled to summary judgment.
¶ 3. The undisputed facts, as reflected in the transcript of the plea colloquy, are as follows. At the change-of-plea hearing, the trial court engaged in a colloquy with petitioner after being presented with his plea agreement. The court confirmed that petitioner had consulted with his attorney about the agreement, that he understood the rights he was giving up, that he was not under the influence of alcohol or drugs, and that he had not been coerced into the plea agreement. The court explained that if the casе had gone to trial, the State would have had to prove each charge beyond a reasonable doubt and petitioner would have an opportunity to cross-examine the State’s witnesses and to call his own witnesses and present any defenses. The court advised defendant that he was giving up his right against self-incrimination, and his right tо appeal the court’s decision.
¶ 4. The trial court then reviewed the charges individually. With respect to the charge of operating without owner’s consent, the court and petitioner engaged in the following back-and-forth:
THE COURT: On the operating without owner’s consent, if that case had gone to trial, the State would have had tо prove that at Guilford, on or about January 24th of this year, you acted knowingly — that means you acted with knowledge, not by mistake or accident — when you operated the motor vehicle of another person, and during the time you operated it, that vehicle was damaged by at least $500. Do you understand that?
PETITIONER: Yes, ma’am.
¶ 5. With respect to the DUI charge, the court and petitioner had the following exchange:
THE COURT: On the DWI in that case, the State would have to prove that also at Guilford, on or about January 24th, you operated a motor vehicle, you did that on a public highway, which was Route 5. At the time, you were under the influence of alcohol and that you were previously convicted of a DWI on May 2nd, 1999. Do you understand that?
PETITIONER: Yes, ma’am.
THE COURT: And the factual basis there is that the police officer had contact with you, you showed signs of being impaired, you admitted that you consumed alcohol, you had difficulty with the field sobriety tests, and the evidentiary breath tests show that you were above the legal limit. Do you understand that?
PETITIONER: Yes, ma’am.
THE COURT: And on that same case, on the same day, the State would have to prove but this time in Brattleboro but on the same day that you possessed marijuana, and you did that knowingly, not by mistake or accident, and you did that unlawfully in violation of the law. Do you understand?
PETITIONER: Yes ma’am.
¶ 7. Finally, with respect to the domestic-assault charge, the court engaged in the following back-and-forth:
THE COURT: [I]f that had gone to trial, the State would have had to prove that on or about October 11th of last year at Brattleboro, you acted recklessly — that means you acted by disregarding the likely outcome of your conduct — and that you did cause bodily injury to a family or household member. Do you understand?
MR. STOCKS: Yes, Ma’am.
THE COURT: And Ms. Kryger [the state’s attornеy], what’s the factual basis for that?
MS. KRYGER: The factual basis of that is that Mr. Stocks — just get the affidavit. The factual basis is that Mr. Stocks was sitting behind Krista Hazelton, who was his girlfriend or ex-girlfriend, that they had been in a relationship, he was sitting behind her in a car and — and put something around her neck and pulled and it — and it caused her pain.
THE COURT: Do you understand that, Mr. Stocks?
MR. STOCKS: Yes, ma’am.
¶ 8. In connection with each charge, the court also identified the penalties the court could impose, and petitioner affirmed his understanding of the penalty for each charge. After confirming that petitioner understood the elements and penalties associated with each charge, the court asked petitioner what he pled to the charges. Petitioner replied, “guilty.” The court found that petitioner had entered into the plea voluntarily and knowingly with a factual basis for the plea and entered a judgment of guilty on the plea.
¶ 9. In his motion for summary judgment in the PCR case, petitioner argued that the trial court’s judgment, and the guilty plea upon which it was based, were fatally flawed in twо ways. First, petitioner argued that the trial court failed to elicit from him the factual basis for the plea as required by Rule 11(f). Second, petitioner asserted that in listing the elements of operation without owner’s consent, the trial court failed to specifically recite “lack of consent” as an element, thereby undermining the voluntariness of his guilty plea.
¶ 10. With respect to the first issue, the PCR court concluded that the plea colloquy substantially complied with Rule 11. See
State v. Cleary,
¶ 11. We review the court’s summary decision de novo, applying the same standard as the trial court.
Sabia v. Neville,
¶ 12. Vermont Rule of Criminal Procedure 11(f) provides, “Notwithstanding the acceptance of a plea of guilty, the сourt should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” This rule
is intended to prevent the entry of false guilty pleas in situations where the defendant does not completely understand the elements of the charge or realize that [he or she] has a valid defense, where the defendant is pleading guilty because of psychiatric disturbance or like incompetency, or where the defendant is deliberately pleading guilty to shield an innocent person.
Reporter’s Notes, V.R.Cr.P. 11(f).
¶ 13. The “factual basis” requirement reinforces the goal of ensuring knowing and voluntary pleas. See
In re Miller,
¶ 14. We discussed the requirements of Rule 11(f) in detail in the case of
State v. Yates,
¶ 15. We do not require a particular formula for determining that therе is a factual basis for the plea. An admission to the facts by the defendant in the course of the colloquy is usually sufficient. A recital of the facts by the prosecutor together with a statement by the defendant confirming their accuracy would also satisfy the rule. What is principally required — and what was missing in this case — is evidence of a specific inquiry by the judge into the factual basis for the plea.
¶ 16. In this case, the change-of-plea court sufficiently described the elements of the charges against petitioner, and the underlying facts alleged, and appropriately ensured that petitioner understood the charges. With the exception of petitionеr’s specific claim concerning the court’s description of the charge of operating without the owner’s consent, which we do not reach, there is no question that the plea colloquy satisfied Rules 11(c) and 11(d). The question for this Court is whether the record of the plea colloquy supports the change-of-plea сourt’s finding of a factual basis for the charge pursuant to Rule 11(f).
¶ 17. Although the court asked petitioner if he understood the charges against him and, in connection with some charges, whether he understood the alleged factual basis for the charge, the court never asked him if he admitted the truth of the allegations, nor whether the State сould prove the underlying facts. The court never asked him to describe the facts giving rise to the charges in his own words, and never sought any other admissions from him to support the conclusion that the guilty pleas had a factual basis. The court did not elicit from petitioner any information to support the finding of a factual basis. Petitioner сonfirmed his understanding of the charges but, apart from the actual guilty pleas themselves, admitted nothing.
¶ 18. With respect to the DUI charge, the trial court did review the facts set forth in the officer’s affidavit on the record in its colloquy with petitioner. Likewise, in connection with the domestic-assault charge, the trial court invited the State to rеad from an affidavit supporting the charge. However, we have held that although “an affidavit may be a source of facts to support the plea . . . the defendant must subsequently admit to these facts in the plea colloquy to demonstrate that there is a sufficient factual basis.”
Yates,
¶ 19. The State emphasizes the pains taken by the trial court to ensure that petitioner understood the factual and legal basis for the charges against him. It argues — and the PCR court concluded — that because the trial court clearly explained the factual and legal bases for the charges, petitioner indicated he understood them, and petitioner then pled guilty to those charges, the “factual basis” requirement was satisfied.
¶ 20. This argument fails for several reasons. First, it effectively reads the distinct
¶ 21. The State also argues that petitioner has failed to show prejudice from what the State describes as a “technical violation.” We have recently reiterated, “It is settled law in this state that no prejudice need be shown to collaterally attack a guilty plea on the grounds that the trial court failed to аscertain that there was a factual basis for the plea as required by Rule 11(f).” Id. ¶ 9. In Miller, we quoted prior case law, explaining:
“[T]he record must affirmatively show sufficient facts to satisfy each element of an offense. The requirement of [Rule] 11(f) involves an understanding by the defendant that the conduct admitted violates the law as explained to him by the court. Absent this, no matter how perfectly the other parts of Rule 11 have been observed, we cannot find a voluntary plea. Unlike collateral review of alleged defects under [Rule] 11(c), which places a burden of proving prejudice upon the defendant, collateral attacks for defects under Rule 11(f) require no showing of prejudice.”
Id.
¶ 11 (quoting
In re Dunham,
¶ 22. For the abоve reasons, we reverse the trial court’s denial of petitioner’s motion for summary judgment and its award of summary judgment to the State. *
Reversed and remanded for entry of a judgment allowing petitioner to withdraw his plea.
Notes
Because we reverse and award summary judgment to petitioner on the basis of petitioner’s Rule 11(f) argument, we need not reach his alternate challenge to the plea colloquy.